Collins v. State
| Decision Date | 30 November 1994 |
| Docket Number | No. 17A04-9310-CR-364,17A04-9310-CR-364 |
| Citation | 643 N.E.2d 375 |
| Parties | Jerry Eugene COLLINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant, Jerry E. Collins ("Collins"), appeals his conviction of three (3) counts of Child Molesting, all class C felonies. We affirm.
Collins presents several issues for our review, which we restate as follows:
1. Whether the trial court properly denied Collins' request for a competency hearing;
2. Whether the admonishment given to the jury regarding a defendant's presence at trial was proper;
3. Whether Collins' attorney provided ineffective assistance at trial;
4. Whether the trial court's Final Instruction 10 was fundamental error;
5. Whether the statements made by the Prosecutor in final argument prejudiced Collins to a level of fundamental error;
6. Whether the sentence imposed by the trial court is manifestly unreasonable.
The facts most favorable to the verdict indicate that Collins molested his daughter ("JC") from the time she was nine-years of age until she was fourteen-years of age, forcing her to submit to many sexual acts. Because Collins makes no challenge to the sufficiency of the evidence against him, our investigation of the facts is unwarranted for purposes of this appeal. Collins claims instead that he suffered a head injury after his arrest for the offenses in question. Due to this head injury, Collins claims he has no recollection of the time period during which he was to have committed the offenses against his daughter.
Pursuant to Collins' request, Collins was evaluated for his competency to stand trial by Dr. Francis M. Cyran, M.D. and Dr. William D. Goudy, D.O. It was determined that, although Collins appeared to have had some memory loss due to the head injury, he was competent to stand trial; he was able to understand the proceedings and assist in the preparation of his defense. Upon receiving the doctor's reports, the trial court held a competency hearing and entered the reports into evidence upon the court's motion. The trial court found Collins competent to stand trial.
Nonetheless, this memory loss, along with Collins' depression and an alleged altercation during a break at the trial between Collins and his sister, was the basis for which he sought a continuance and second competency hearing. The trial court denied his motion for continuance and for a second competency hearing. Collins refused to be present when evidence was presented by the State. Collins was present when counsel presented final argument and when the court gave its instructions to the jury. He did not object to the instructions given by the court.
The jury returned a verdict of guilty to the three counts of Child Molesting. Collins was sentenced to eighteen (18) years imprisonment, six (6) years for each count, to be served consecutively.
We must first determine whether the trial court properly denied Collins' request for a second competency hearing and continuance. Denial of a motion for continuance lies within the sound discretion of the trial court and will be reviewed only for abuse of discretion. Hazelwood v. State (1993), Ind.App., 609 N.E.2d 10, 13. An abuse of discretion occurs when the ruling is against the logic and effect of facts and circumstances before the court, Id. at 11, or where the record shows the defendant was prejudiced by the denial of the continuance. Vaughn v. State (1992), Ind., 590 N.E.2d 134, 136.
Before Collins was charged with these offenses, he had been hospitalized for severe depression. His counselor recommended that he not stand trial due to his emotional problems. Additionally, Collins claims to have had an accident where he fell out of a canoe and hit his head, causing amnesia. It was alleged by Collins that he had no memory regarding the events alleged in the Charging Information. Collins filed a motion for a competency hearing pursuant to IND.CODE § 35-36-3-1. This statute states, in pertinent part:
(a) If any time before the final submission of any criminal case to the court or the jury trying the case, the court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability. The court shall appoint two (2) or three (3) competent, disinterested psychiatrists, psychologists endorsed by the Indiana state board of examiners in psychology as health service providers in psychology, or physicians, at least one (1) of whom must be a psychiatrist, who shall examine the defendant and testify at the hearing as to whether the defendant can understand the proceedings and assist in the preparation of the defendant's defense.
After the advisement by Collins' personal counselor, the trial court requested Dr. Francis Cyran, M.D. and Dr. William Goudy, D.O. to determine whether Collins was competent to stand trial. Collins challenges whether these doctors meet the qualifications required by the statute. Because Collins failed to timely challenge the qualifications of these doctors at the competency hearing, he has waived this issue on appeal. Luster v. State (1991), Ind.App., 578 N.E.2d 740.
Collins cannot prevail on the position that because the record does not reflect the doctors' qualifications, the State failed to meet the requirement of the statute. Collins has the burden of producing evidence in the record which supports his claim that the doctors do not meet the qualifications of the statute. Evans v. State (1986), Ind., 497 N.E.2d 919, 923. A silent record will not support a claim of error. Id. The record supports the fact that the trial court adhered to the statute. The trial court's letter to the doctors referred to the requirements of IC 35-36-3-1, and a copy of the statute was attached to the letter. In the absence of evidence disproving such, the trial court is presumed to have had knowledge that one of the doctors was a psychiatrist.
Collins also asserts that the trial court did not have a competency hearing. To the contrary, the trial court held a competency hearing and, upon reviewing the doctors' reports and listening to arguments of counsel, the trial court found that Collins "understands the proceedings and is able to assist in the preparation of his defense" and therefore found Collins competent to stand trial.
Collins claims that the trial court's refusal to grant a second competency hearing after trial had begun was an abuse of discretion. After voir dire and the reading of the jury's preliminary instructions, there was a lunch recess. After lunch, defense counsel requested a continuance due to an alleged confrontation between Collins and his sister. After the court questioned each juror and determined that none had witnessed the altercation between Collins and his sister, the court denied the motion for continuance. Defense counsel next asked the trial court to speak via telephone to Collins' personal psychologist. The court denied this request.
Our supreme court has established the following test for determining the competency of a criminal defendant: "[w]hether the defendant has sufficient present ability to consult with defense counsel with a reasonable degree of rational understanding, and whether the defendant has a rational as well as factual understanding of the proceedings against him." Adams v. State (1987), Ind., 509 N.E.2d 812, 814. If a court has reasonable grounds for believing that the defendant lacks the ability to understand the proceedings and assist in the preparation of his defense, the court shall immediately fix a time for a hearing to determine whether the defendant has that ability. IC 35-36-3-1. Whether such reasonable grounds exist is a determination to be made by the trial court and will be reviewed only for abuse of discretion. Brown v. State (1987), Ind., 516 N.E.2d 29. A trial judge's observations of a defendant's demeanor in court are an adequate basis for determining whether a competency hearing is necessary. Id. Predictable stress from facing one's own felony trial does not warrant a competency hearing; nor does an off-the-record admonishment by a defendant's family member. Otherwise, every criminal defendant would be eligible for a competency hearing at any stage of the proceedings. The right to a competency hearing is not absolute. Id.
Collins next argues that because the trial court proceeded with the trial in his absence, he was denied his constitutional right to be present at trial under the Sixth Amendment. A defendant who knowingly and voluntarily waives his right to be present at trial cannot thereafter claim a violation of that right. Dodson v. State (1987), Ind., 502 N.E.2d 1333, 1337. Collins was advised by counsel that his failure to attend the proceeding against him would be considered a waiver of his Sixth Amendment right to be present at trial. He nevertheless chose not to attend, thereby eliminating a claim of fundamental error.
We must next determine whether the following admonishment given by the court to the jury was proper:
Ladies and Gentlemen of the Jury, I do inform you that any person charged with a criminal offense may choose to not be present during any portion of his or her trial. We will now continue with these trial proceedings.
Collins did not object to the admonishment at trial and therefore waives this issue. Madden v. State (1990), Ind., 549 N.E.2d 1030, 1033. Additionally, because Collins had knowledge that his refusal to be present constituted a waiver of his right to be present, his absence was voluntary....
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